INTL305How FISA Violates the Fourth AmendmentINTL305Assignme, Lecture notes of Accounting

Download INTL305How FISA Violates the Fourth AmendmentINTL305Assignme and more Lecture notes Accounting in PDF only on Docsity! INTL305 How FISA Violates the Fourth Amendment INTL305 Assignment #2 The Foreign Intelligence Surveillance Act (FISA) was enacted by Congress in 1978 (Congressional Research Service 2021, 1). It was created after widespread privacy violations by the federal government during the 1970s (CRS 2021, 1). FISA was enacted to establish guidelines for the government’s collection of foreign intelligence through electronic surveillance, physical searches, trap and trace devices, or by using third parties to gather records (CRS 2021, 1). While FISA was created to prevent electronic surveillance from violating Fourth Amendment rights, it has created a legal way for the government to continue unconstitutional surveillance. By comparing FISA to the U.S. Constitution, analyzing the National Security Agency’s wiretapping case, and District Judge Anne Taylor’s ruling, we will see how FISA directly conflicts with the Fourth Amendment. Then we will look into possibilities for balancing the Fourth Amendment and National Security. First let’s define the jurisdiction of federal laws. Jurisdiction refers to whether a court has the authority to hear a case (Edmonds 2003). If courts were not acting within their own jurisdictions, any court could handle every case presented to them which can lead to confusing and contradictory results (Edmonds 2003). Federal jurisdiction spans the entire country (Edmonds 2003). An example of this is the Supreme Court, who can take cases from any state (Edmonds 2003). Federal courts are also responsible for cases that involve Constitutional issues (Edmonds 2003). FISA established two foreign intelligence courts to approve FISA investigations (CRS 2021, 1). The first court is the U.S. Foreign Intelligence Surveillance Court (FISC) which is made up of eleven federal judges (CRS 2021, 1). The jurisdiction of the U.S. Foreign Intelligence Surveillance Court (FISC) covers any applications for warrants that authorize electronic surveillance or physical searches in the U.S. with the end goal of collecting foreign intelligence information under FISA (Bazan 2007, 9). This is covered in Section 103 of Title I of the FISA. These courts can approve, approve with modifications, or deny these court order applications (Bazan 2007, 9). If one judge denies the court order, another judge cannot hear the same application (Bazan 2007, 9). If a judge denies the application, they must submit a written statement for each reason behind his or her decision (Bazan 2007, 9). The second court, the Foreign Intelligence Surveillance Court of Review, which is made up on three federal judges, is in place to hear appeals from the FISC (CRS 2021, 1). One provision of FISA is the authorization for electronic surveillance and physical searches for foreign intelligence purposes. Titles I provides the steps for government agencies to follow to gain a FISA order through the FISC (CRS 2021, 1). The only person who can approve electronic surveillance without a court order is the President through the Attorney General (FISA Title I, Sec 102). Section 103 of Title I covers the designations of judges on the FISC. Section 104 covers the actual application for an “order approving electronic surveillance” (FISA Title I, Sec 104). In addition to the judge sitting the FISC, each application needs to be signed off by the Attorney General (FISA Title I, Sec 104). The Attorney General must ensure that the following are in the application: 1. Who is submitting the application. 2. Approval of the Attorney General to make an application. 3. Identity of the target if known. 4. Justification that the target is a foreign power or agent of a foreign power. 5. Minimization procedures. 6. Type of information the applicant is seeking. 7. If physical entry is required to collect information. 8. Statement of all previous applications and outcomes submitted by the same applicant. 9. Period of time for surveillance. 10. List of all surveillance devices that will be used to collect (FISA Title I, Sec 104). Overall, FISA does not properly balance Americans Fourth Amendment rights against the importance of collecting on foreign intelligence threats to the U.S. The Fourth Amendment is there to protect the rights of people and their effects. In 2019 alone, the Justice Department Inspector General (IG) found an average of 20 issues on 25 of 29 Federal Bureau of Investigation (FBI) applications for FISA surveillance authorization (Lee 2020). These mistakes included failure to disclose all evidence that could clear someone of any wrongdoing, evidence that would protect the average person from being unreasonably monitored (Lee 2020). In 2019, out of the thousands of applications the court has heard, FISC only utilized the impartial advisor 16 times (Lee 2020). This advisor’s job is to protect the constitutional rights of those in question and it was only used once per every 63 cases. So how does one balance the Fourth Amendment and National Security? This will always be a topic of hot debate and one that not everyone is going to be happy with the outcome. FISA had good intentions, to collect on foreign threats within our jurisdiction, but it needs to be amended and changed in numerous ways to fully protect the rights of all persons in the U.S. For one, FISC’s review process is less stringent than the process to gain a criminal warrant (Galloway 2002, 952). The Executive branch holds the sole power to make the most important probable cause determination in the application process (Galloway 2002, 953). This is completely omitting the checks and balances process. Additionally, once the Attorney General certifies the application as valid, it is “subjected to only minimal scrutiny by the courts” (Galloway 2002, 953). And as mentioned earlier, the use of an impartial advisor was only used 16 times out of thousands of cases. Those involved in the FISA process are more concerned about getting authorization for electronic surveillance than they are about protecting Fourth Amendment rights. To better balance Fourth Amendment rights and National Security, it is recommended that the impartial advisor is a mandatory voice on all FISC cases and creates their own compilation of how each case does not violate the Fourth Amendment. In conclusion, FISA has a lot of room to grow when it comes to respecting the Fourth Amendment. It needs to be amended to balance all persons rights to protection from unreasonable searches and seizures while also protecting U.S. National Security. The Fourth Amendment cannot be sacrificed for National Security. The FISC needs to do a better job at scrutinizing all cases brought to them and utilizing the impartial advisor to ensure that all persons who are being targeted are being treated fairly and are not losing their constitutional rights. Bibliography 95th Congress. 1978. Foreign Intelligence Surveillance Act of 1978. AAUP. n.d. “ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007 ).” American Association of University Professors. Accessed May 30, 2021. https://www.aaup.org/brief/aclu-v-nsa-493-f3d-644-6th- cir-2007. Bazan, Elizabeth. 2007. “The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview.” Congressional Research Service. Congressional Research Service. 2021. “Foreign Intelligence Surveillance Act (FISA): An Overview.” https://fas.org/sgp/crs/intel/IF11451.pdf. Constitutional Rights Foundation. 2006. “BRIA 22 3 c the National Security Agency Warrantless Wiretaps.” Www.crf-Usa.org. 2006. https://www.crf-usa.org/bill-of-rights-in- action/bria-22-3-c- the-national-security-agency-warrantless-wiretaps. ———. n.d. “BRIA 19 4 a the Patriot Act: What Is the Proper Balance between National Security and Individual Rig.” Www.crf-Usa.org. https://www.crf-usa.org/bill-of-rights-in- action/bria-19-4-a-the- patriot-act-what-is-the-proper-balance-between-national-security-and- individual-rig. Cornell Law School. 2017. “Fourth Amendment.” LII / Legal Information Institute. October 10, 2017. https://www.law.cornell.edu/constitution/fourth_amendment. Edmonds, Curtis. 2003. “Federal Court Concepts: Jurisdication of Federal Courts.” Adacourse.org. Center for Assistive Technology and Environmental Access (CATEA). 2003. http://adacourse.org/courtconcepts/juris.html. Galloway, Heath. 2002. “Don’t Forget What We’re Fighting For: Will the Fourth Amendment Be a Casualty of the War on Terror?” Washington and Lee Law Review 59 (3): 922–73. Lee, United States Senator Mike. 2020. “FISA Needs Reform. Our Amendment Would Do That — and Protect Constitutional Rights.” Www.lee.senate.gov. May 10, 2020. https://www.lee.senate.gov/public/index.cfm/2020/5/fisa-needs-reform-our-amendment-would- do- that-and-protect-constitutional-rights. Malca, Victor. 2019. “Do Non-Citizens Have Constitutional Rights?” Victor Malca P.A. February 21, 2019. https://victormalcalaw.com/do-non-citizens-have-constitutional-rights/#:~:text=The %20constitution%20protects%20the%20rights. Tyler, John. 2018. “FISA vs the Constitution.” Hbu.edu. Houston Baptist University. July 24, 2018. https://hbu.edu/news-and-events/2018/07/24/fisa-vs-the-constitution/. Vile, John. 2020. “American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich.).” Mtsu.edu. 2020. https://www.mtsu.edu/first- amendment/article/641/american- civil-liberties-union-v-national-security-agency-central- security-service-e-d-mich.